Bucklew v. Precythe, No. 17-8151
In Bucklew v. Precythe, the Supreme Court took up the latest in a line of capital cases challenging a state’s method of execution. Unlike other recent cases that questioned whether certain methods of execution are inherently unconstitutional, Missouri death row prisoner Russell Bucklew challenged the state’s lethal injection protocol as it applies to his unique medical circumstances. Mr. Bucklew suffers from a rare, debilitating medical condition known as cavernous hemangioma that could cause him to experience extreme suffering during the lethal injection process. The Court agreed to review a number of questions raised by the case, including whether Mr. Bucklew must propose an alternative method of execution in order to bring the challenge; if so, whether he met his burden to establish the existence of the alternative method; whether the Court should assume that the state personnel conducting the execution would be competent to carry it out; and what evidence is needed to establish that one method of execution carries less risk of suffering than another.
During oral argument on November 6, 2018, the Court focused primarily on the questions of whether Mr. Bucklew had shown that he would experience extreme suffering during any lethal injection procedure and whether the proposal of an alternative method that has not yet been used by any state could constitute a viable alternative method. Justice Sotomayor sharply questioned counsel about Mr. Bucklew’s current medical status and whether any decision in the case would be solely advisory given the possibility that the condition might change. Justice Roberts, meanwhile, questioned whether Mr. Bucklew’s proposed alternative method of execution—nitrogen hypoxia—was actually an “available” method, given that no state has yet used it. Justice Kavanaugh, meanwhile, expressed considerable skepticism in response to the State’s assertion that even if a method of execution were to create brutal and gruesome pain for the prisoner, it would nonetheless be constitutional if there was no other alternative. As with prior cases challenging methods of execution, the opinion will likely reflect the significant divisions in the justices’ views on the Eighth Amendment and capital punishment.
Madison v. Alabama, No. 17-7505
Vernon Madison is on death row in Alabama for the 1985 murder of a police officer: a crime which, due to a series of strokes and the development of vascular dementia, he is wholly unable to remember committing. On October 2, 2018, the U.S. Supreme Court heard arguments about whether Mr. Madison is competent to be executed. Past Supreme Court decisions have held that it violates the Eighth Amendment to execute someone who is “insane,” or someone who is so mentally ill as to be unable to rationally comprehend the reasons for his execution.
Mr. Madison is routinely unable to remember where he is or why he is facing the death penalty. When told that he is on death row for committing this crime, Mr. Madison can temporarily understand why the State intends to execute him, but he quickly forgets this information. He is constantly “disoriented as to time and place,” “cannot remember the alphabet past the letter G,” and sometimes soils himself because he cannot find the toilet next to the bed in his cell.
During oral arguments, Mr. Madison’s counsel—Equal Justice Initiative founder and director Bryan Stevenson—conceded that it is not enough that a prisoner simply be unable to remember the commission of a crime but argued that the Eighth Amendment prohibits execution of someone whose mental and physical deterioration has left him so fragile and vulnerable that, in addition to not remembering the crime, he is unable to orient himself to time and place. Mr. Madison, his attorneys argue, may not be technically “insane” or incapable of understanding why the State intends to execute him; but he is nonetheless the type of individual that the Eighth Amendment shields from execution. During oral argument, Mr. Stevenson told the Court, “The 8th Amendment isn’t just a window. It’s a mirror. And what the court has said is that our norms, our values are implicated when we do things to really fragile, really vulnerable people. And what we’ve argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency.”
In response, the State argued that vascular dementia and strokes could be sufficient to render someone incompetent to execute, but because Mr. Madison was able to rationally understand why the State intended to execute him, he did not fall within the narrow category of individuals that are exempt from execution under the Eighth Amendment.
Carpenter v. Murphy, No. 17-1107
On November 27, 2018, the Supreme Court took up an unusual question in a capital case: whether the state of Oklahoma lacked jurisdiction to prosecute capital defendant Patrick Murphy. Mr. Murphy, who is a member of the Muscogee (Creek) Indian Nation, was convicted of the murder of George Jacobs, also a member of the Creek Nation, in Oklahoma state court. In federal habeas proceedings, Mr. Murphy’s lawyers argued that the state lacked jurisdiction to prosecute the crime because it occurred on land belonging to the Creek Nation. They introduced evidence that the land in question belonged to the Creek Nation, based on boundaries set in 1866 which were never formally disestablished by Congress. As a result, they argued, any murders that took place in that territory involving one or more members of the Creek Nation would be subject to exclusive federal jurisdiction. A host of other civil and criminal laws and regulations would also potentially be affected by the jurisdictional question, as the disputed territory spans nearly half the state of Oklahoma and is home to roughly 1.8 million people.